'Objection sustained' - please teach me.

[KarlGauss]

I know nothing about the legal process. One of the areas that I know nothing about has to do with constitutes appropriate grounds for an attorney to object to another’s question of a witness.

In this fascinating link about the Chicago 7 trial (thanks, kunilou), there’s a section which gives the verbatim transcripts for a number of the witnesses (e.g. Phil Ochs, Allen Ginsberg, Timothy Leary, Norman Mailer, etc., - I told you, it’s a fascinating link ).

When Mailer was on the stand, the following exchange took place (note: William Kunstler was a defence lawyer, and Richard Schultz was a prosecuting attorney):

MR. KUNSTLER: Would you state, Mr. Mailer, what your occupation is?

THE WITNESS: I am a writer.

MR. KUNSTLER: I show you D-344 for identification and ask you if you can identify this book.

THE WITNESS: This is a book written by me about the march on the Pentagon and its title is The Armies of the Night.

MR. KUNSTLER: Can you state whether or not this book won the Pulitzer Prize?

THE WITNESS: It did.

MR. SCHULTZ: Objection.

THE COURT: I sustain the objection. I strike the witness’ answer and I direct the jury to disregard it.

MR. KUNSTLER: Can you state what awards this book has won?

THE WITNESS: The book was awarded the National Book Award and the Pulitzer Prize in 1969.

Now, my questions:

1. Why was the objection made?
2. How did rephrasing it in the way Kunstler did make it acceptable and ‘beyond’ objection?
3. At the end of the day, the same information was forthcoming. What, then, was the purpose of the objection (and why did the judge allow it)?

I suppose the objection may have been made because the question as phrased was narrow and compelled Mailer to answer ‘yes’. But surely that can’t be the case, can it? I mean, asking “what awards (the) book has won” also compels the same answer (and also implies, even before it’s been answered, that, indeed, the book did win awards). In truth, it makes no sense at all to me. So, I’ll ask again:

1. Why was the objection made?
2. How did rephrasing it in the way Kunstler did make it acceptable and ‘beyond’ objection?
3. At the end of the day, the same information was forthcoming (i.e. the book won a Pulitzer). What, then, was the purpose of the objection (and why did the judge allow it)?

Thanks in advance!

[Oakminster]

@KarlGauss

I suppose the objection may have been made because the question as phrased was narrow and compelled Mailer to answer ‘yes’. But surely that can’t be the case, can it? I mean, asking “what awards (the) book has won” also compels the same answer (and also implies, even before it’s been answered, that, indeed, the book did win awards). In truth, it makes no sense at all to me. So, I’ll ask again:

This transcript appears to be from direct examination. The question that prompted the objection was a “leading question”–ie, one that suggests the desired answer. Leading questions are generally not proper on direct, but are proper on cross examination. In my opinion, this was a “nit picking” objection, and one I would probably not make. When rephrased, it became a non-leading question, and the other side had no other ground upon which to object.

Here, there was a valid basis to object, and Schultz chose to do so. It’s a judgment call on the part of the objecting lawyer.

[hawthorne]

Presumably the opposing lawyer was trying to get in early and make a show of stopping all leading questions rather than appear only to object when they actually became a problem for his case.

[Campion]

@Oakminster

In my opinion, this was a “nit picking” objection, and one I would probably not make. When rephrased, it became a non-leading question, and the other side had no other ground upon which to object.

Agreed. Looking further through that testimony, I’ll add that it appears that the judge had it in for Kunstler. What kind of judge (outside of Law & Order) sustains an objection before hearing the grounds?

For kicks, here is Mr. Sedivy’s short list of objections (I love this webpage!). His explanation of a leading question is precisely what Oakminster said. If you have other questions as you go through the transcript, this may help.

Final note: sometimes leading is okay, particulary when it’s just background information. As a purely technical matter, I think the question cited probably qualifies. So that’s why I think the judge doesn’t like the lawyer. hawthorne’s point is well-taken, too. Schultz may have objected simply to disturb the flow of the testimony as much as possible, so that the jury is less impressed with Mailer than they would otherwise be.

[Bryan_Ekers]

Leading aside, the question is badly phrased.

Can you state whether or not this book won the Pulitzer Prize?

The witness can state anything, including that the book was telepathically inspired by Martians. As phrased, the only correct answer is “yes”, as in “yes, I could state whether or not the book won the Pulitzer Prize.”

[David_Simmons]

@Campion

What kind of judge (outside of Law & Order) sustains an objection before hearing the grounds?

Could be, but my lawyer friend told me after I asked about this, that you usually assume that the judge knows the reason for the objection (even I recognized the question as leading) and will ask for grounds if he or she doesn’t.

[KarlGauss]

Wow. Thanks to everyone for such helpful (and speedy) answers. And, Campion, thanks for pointing out Mr. Sedivy. Neat.

Not to belabour too much, I did assume the question was leading. Still, the rephrasing was no less leading, IMHO. Regardless, how can you lead a witness about a matter of fact, about a fact of history? In this light, both what Campion said (about disrupting the flow of testimony) and what hawthorne said (about pre-empting all potential leading questions) make sense.

[Campion]

@David Simmons

Could be, but my lawyer friend told me after I asked about this, that you usually assume that the judge knows the reason for the objection (even I recognized the question as leading) and will ask for grounds if he or she doesn’t.

Not in my trials you don’t.

On the one hand, you don’t want “speaking objections”: “Your Honor, I object to that question, because it suggests its own answer to the witness; counsel should let the witness testify instead of trying to testify for him!”

But you do want an appellate record, so “Objection, leading” gets the job done. In some trials, to prevent the jury from hearing, we’ve done, “Objection, approach.” The judge lets the lawyers approach the bench and, off the record and outside the hearing of the jury, the lawyers argue the objection. Then, during breaks, the parties put the objections on the record so that should an appeal ensue, you can tell what happened.

Even though this is a relatively innocuous question, as a lawyer, you can’t really know ahead of time what your appellate issues are. It’s also bad form (disrespectful even) to make the judge do your job.

@KarlGauss

Regardless, how can you lead a witness about a matter of fact, about a fact of history?

Most of the time, you have spoken to the witness ahead of time. The witness has a general idea about what you’re going to ask him, and because you’ve interviewed him, you know how he stores information in his brain. You craft your questions to access that information.

The difficulty comes in the question of what is “fact,” what is “history.” Obviously, the prosecution and the defense have different ideas about what that is. Here, though, this really just seems like a pissing match to me.

One other thing: you really are permitted to lead witnesses on things like background, because those are really just foundational (see this interesting article about Florida’s law on leading, which is taken from the Federal Rules).

The question as rephrased wasn’t leading: it doesn’t assume that the book won any prizes, but instead asked whether it had (I’m roughly paraphrasing because the questions are pretty poor, as Bryan Ekers pointed out).

Anyway, bottom line, I probably wouldn’t have objected to the question for substantive reasons, but might have for purely strategic reasons.

[Boyo_Jim]

@Campion

Agreed. Looking further through that testimony, I’ll add that it appears that the judge had it in for Kunstler. What kind of judge (outside of Law & Order) sustains an objection before hearing the grounds?..

There was a lot of press both during and after the trial about Judge Hoffmann’s bias against the defendants.
From Law in America:

The judge, Julius Hoffman, presided over a jury selection that resulted in, as one trial observer put it, a jury that looked like “the Rolling Meadows Bowling League lost on their way to the lanes.” William Kunstler and Leonard Weinglass, the defense attorneys, had submitted a lengthy list of questions for jury selection, but Hoffman utilized only one of their questions. Consequently, after the trial, biased jurors voiced opinions that the defendants should have been convicted “on their appearance, their language, and their lifestyle.” One juror even suggested that the activists should have been “shot down by the police.”

Not surprisingly, given the personalities of the defendants, the Chicago Seven trial often resembled a circus. For example, the defendants would sometimes shout directly at the judge, show up for trial attired in blue jeans and beads, sit with their feet on the table, eat jelly beans, or sleep. The defense suggested that aspects of the prosecution’s supposed conspiracy were merely jokes–the defendants’ threat to put LSD in the Chicago water supply, for instance. The defense also suggested that it was ridiculous to even imagine all of the activists reaching an agreement on basic tactics, let alone working together, as Abbie Hoffman said, “Conspiracy? Hell, we couldn’t agree on lunch.”

The jury initially deadlocked, but after stern instructions from the judge to try again, they compromised and found the defendants guilty of crossing state lines to incite a riot, but not guilty of the conspiracy charges. Judge Hoffman sentenced each to five years in prison, in addition to the stiff sentences he imposed for their 159 counts of contempt of court. Interestingly, defense attorney Kunstler also received a sentence of four years and thirteen days for contempt. All convictions would eventually be overturned by the Seventh Circuit Court of Appeals, based largely on the unfair method by which Judge Hoffman selected jurors.

From US History.com

Charges of incitement to riot were brought against seven radicals. Judge Julius Hoffman presided over their trial with a barely disguised pro-prosecution attitude. He sentenced the defendants and their lawyers to long terms for contempt of court, only to have the decisions overturned on appeal. He then handed down long sentences after convictions were returned on some of the counts, and again they were overturned, on the basis of judicial prejudice and FBI misconduct.

Between the defendants and their lawyers, Judge Hoffman handed out 159 contempt citations. Defense lawyer William Kuntsler’s citations alone added up to more than a 4 year prison sentence.

[Oakminster]

@KarlGauss

.

Not to belabour too much, I did assume the question was leading. Still, the rephrasing was no less leading, IMHO. Regardless, how can you lead a witness about a matter of fact, about a fact of history? In this light, both what Campion said (about disrupting the flow of testimony) and what hawthorne said (about pre-empting all potential leading questions) make sense.

The rephrased question was less leading, in that it did not suggest a specific award won by the book, but it did assume that some award was won. It could have been handled with two questions:

1. Has this book won any awards? (yes)
2. What awards were they?

In general, on direct, you want to stick to one fact per question, and begin the questions with Who, What, Where, Why, How, When. There are exceptions, of course, based on circumstances.

On cross, you want to control the answers pretty tightly. You do that either by making a statement but implying a question by vocal inflection–Example: You saw the defendant driving a red car?–Or, you can use a phrase like “Isn’t it true that…” to start a question, or you could end a stament with “…isn’t that true”?

My preference is the vocal inflection method, but practices vary in different places.

[Bricker]

@Oakminster

The rephrased question was less leading, in that it did not suggest a specific award won by the book, but it did assume that some award was won. It could have been handled with two questions:

1. Has this book won any awards? (yes)
2. What awards were they?

Or the oft heard: “What awards, if any, has this book won?”

[Princhester]

@Campion

It’s also bad form (disrespectful even) to make the judge do your job.

Because you’re all dying to know, I’ll comment on the Australian position on this (at least in civil trials, which is all I do).

80% of the time no grounds for an objection are stated. The opposing counsel says “objection” and the judge knows what the reason for the objection will be without having to be told and gives an informal ruling immediately. Often in fairly casual language ie “you might want to rephrase that question, Mr so-and so” or “No, I think I’ll allow that [question]”.

Only if the judge is uncertain, or one or other counsel wants to argue the informal ruling, will the objecting party state the objection and reasons.

[Bricker]

@Campion

But you do want an appellate record, so “Objection, leading” gets the job done. In some trials, to prevent the jury from hearing, we’ve done, “Objection, approach.” The judge lets the lawyers approach the bench and, off the record and outside the hearing of the jury, the lawyers argue the objection. Then, during breaks, the parties put the objections on the record so that should an appeal ensue, you can tell what happened.

You get no argument from me on the value of building an appellate record. But as a guy that practiced in an area where the other side can’t appeal, the necessities of making your record are a bit different. If I make an objection and offer no grounds, and the judge sustains me, the fact that there’s no record can’t possibly hurt me.

Normally I’d always offer at least a one-word comment, unless the grounds were so blindingly obvious – if it’s the third objection for hearsay in the last three questions, and the Commonwealth hasn’t yet wised up about what they’re doing wrong, I’d simply say “Objection,” trusting the obvious context to be drawn.

The only way I’m hurt is if the judge overrules my objection, and then I can apologetically ask to be heard on the issue and make the specific grounds known. That’s the time, by the way, to throw in the kitchen sink: make sure you offer alternate grounds if possible, because the appeals court will be looking for a way to tell you that the error didn’t happen or was harmless. (Appeals courts LOVE harmless error.) To get any mileage out of a criminal appeal, you’ve got to be able to show (1) an error, that (2) caused your guy to suffer actual prejudice that (3) can reasonably be said to cast doubt on the outcome of the trial. Put on the record not only your grounds, but what prejudice your guy suffers as a result; there’s less chance that the appeals panel will sniff “speculative” when they see it.

Not that I am, you know… bitter, or anything.

[pulykamell]

@Campion

Agreed. Looking further through that testimony, I’ll add that it appears that the judge had it in for Kunstler. What kind of judge (outside of Law & Order) sustains an objection before hearing the grounds?

IANAL, but I did work for one and sat in on several federal cases, including a two-month trial in the Northern District of Illinois. Suffice to say, each judge was a little different, but it was not uncommon for a judge to sustain objections without hearing a basis, if the basis was obvious. In fact, for common objections such as leading or foundation, the basis was rarely announced or asked for. In some cases, if a generic objection were raised, the judge would occassionally ask for basis if the reason for the objection were ambiguous. Sometimes, two bases would be given, and the judge would overrule on one, and sustain on the other.

Just an observation…

[Quercus]

@Bricker

But as a guy that practiced in an area where the other side can’t appeal,

What area is that?

[whole_bean]

@Quercus

What area is that?

My guess is criminal defense. State can’t appeal an acquittal. Something to do with the consitution

[Bricker]

@Quercus

What area is that?

whole bean has it. I was a public defender. If you win, it’s a walk-away; the prosecution cannot appeal a not-guilty verdict.

[Rhythmdvl]

Another minor data point from the realm of the theoretical…

From what I remember from trial classes, practicums, and advice/stories from law professors, there is a (developable) intuitive component to making and responding to objections. Given the flow, pacing and timing of oral trial activities, one doesn’t quite have the time to completely analyze, in depth, the entire scope of possible ramifications of a question asked or statement made. (*See *Campion, post #8). But having developed the ability to recognize the linguistic pattern of a leading question, one that asks for hearsay, or is argumentative, etc., one, in some ways, reflexively objects to transgressions of trial practice irrespective of the transgression’s actual weight. This reflexivity is, of course, tempered with experience that takes into account such things as the judge’s temperament, the jury’s reactions, and a whole host of other considerations.